Citation Nr: 1509455
Decision Date: 03/04/15 Archive Date: 03/17/15
DOCKET NO. 11-01 825 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus.
2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus Type II (DMII).
3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for swelling of feet, claimed as neuropathy of the feet.
4. Entitlement to an increased rating in excess of 30 percent for depressive disorder.
5. Entitlement to an increased rating in excess of 10 percent for irritable bowel syndrome (IBS).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Brandon A. Williams, Associate Counsel
INTRODUCTION
The Veteran had active military service from November 1990 to November 1991.
These matters come before the Board of Veterans' Appeals (Board) from the August 2008, February 2014, and May 2014 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas.
The issue of entitlement to an increased rating in excess of 30 percent for depressive disorder was remanded in June 2014 by the Board in order to schedule the Veteran for a video conference hearing before a Veterans Law Judge. A review of the record shows that the RO has complied with all remand instructions.
In October 2014, a Board hearing was held via video conference before the undersigned Veterans Law Judge; a transcript of that hearing is of record.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran contends that his depressive disorder has increased in severity. The claims folder reflects that the Veteran has filed claims with the Social Security Administration (SSA). (See December 2003 Notice of Disapprove Claim and April 2009 SSA correspondence). The VA's duty to assist requires that it make as many requests as necessary to obtain relevant records from a Federal agency. 38 C.F.R. § 3.159(c)(2) (2014). Since the claims folder reflects that relevant records pertaining to this claim may be in the custody of another Federal agency, the Board finds that SSA records may be useful to it in adjudicating the Veteran's claim and VA should attempt to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).
Additionally, in the October 2014 hearing, the Veteran stated that his depressive disorder symptoms have gotten worse. (See hearing transcript page 11). Based on the alleged worsening of the Veteran's depressive disorder, the Board finds that another VA examination is warranted. Snuffer v. Gober, 10 Vet. App. 400 (1997).
In the February 2014 rating decision, the RO declined to reopen the Veteran's claim for service connection for swelling of the feet and reopened but continued the denial of service connection for DMII and tinnitus. Additionally, in the May 2014 rating decision, the RO denied the Veteran's claim for entitlement to an increased rating for IBS. In August 2014, the Veteran submitted a Notice of Disagreement (NOD), disagreeing with the rating decisions. The RO has yet to issue an SOC in regard to the Veteran's claims.
In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but an SOC has not been issued, the Board must remand the claim to the RO to direct that an SOC be issued. In the circumstances presented in this case, the RO must issue an SOC for the issues of
whether new and material evidence has been received to reopen the claims of entitlement to service connection for tinnitus, DMII, and swelling of the feet. The RO must also issue an SOC for the issue of entitlement to an increased rating in excess of 10 percent for IBS.
Accordingly, the case is REMANDED for the following action:
1. Contact the SSA and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision.
2. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for any mental disorder; complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file.
3. After associating all newly acquired records with the claims file, schedule the Veteran for a VA mental health examination in regard to the claim for an increased rating in excess of 30 percent disabling for depressive disorder. The claims file should be made available for the examiner to review and the examination report should reflect that such review was accomplished.
The clinician must consider the entire claims file and report all current findings.
4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration.
5. Issue a Statement of the Case to the Veteran and his representative pertaining to his claims for a.) entitlement to an increased rating in excess of 10 percent disabling for IBS; b.) whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus; c.) whether new and material evidence has been received to reopen a claim of entitlement to service connection for DMII; and d.) whether new and material evidence has been received to reopen a claim of entitlement to service connection for swelling of the feet.
6. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202 and 20.302(b). If a timely substantive appeal is not filed, the claims should not be certified to the Board. If a timely substantive appeal is filed, the issues should be returned to the Board for further appellate consideration, if appropriate.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).